R. v. Bourget

35 C.C.C. (3d) 371

Facts

SA CA

charged with "over 80" ...counsel had requested that the Crown provide him with samples of the ampoules used in the breathalyzer ... request was made so that independent tests could be conducted to ascertain the reliability and accuracy of the machine when these particular ampoules were used. ...manufacturer could take no responsibility for the precision and accuracy of the instrument used unless "genuine breathalyzer ampoules are used"....Crown refused to comply ...said not obliged in law to make discovery of the representative ampoules under any conditions...accused was convicted at trial but his appeal to the summary conviction appeal court was allowed and a new trial ordered

Another Issue

SA CA

Crown refusal to supply ampoules, non genuine Breathalyzer, for testing, what is remedy?

Reasons

SA CA

request was made in a timely fashion, not for purposes of delay and with a genuine desire to have the appropriate tests conducted...the issue of accuracy of a machine using "Analex" ampoules was a live issue throughout the trial. In light of the manufacturer's certification of the instrument, counsel was not merely "fishing" for information. ...circumstances I do not agree that the Crown can, by refusing to supply representative ampoules, thwart the principles with respect to disclosure and discovery articulated in these judgments. If the defendant is to have a meaningful right of discovery, then the court must intervene to see that appropriate and effective orders are made for production, discovery and testing. ...Furthermore, pre-trial disclosure and discovery have societal benefits which should not be overlooked...permit thorough preparation for trial and minimize the potential for surprise or delay; they should eliminate as much as possible the procedural and substantive inequities among similarly situated defendants. In this way, not only are the immediate concerns of the judiciary, the state, the community and the litigants served, so are the longer-range concerns about the over-all operation of the criminal justice system

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